The investigation into Chiquita for supporting Colombian terrorists always stank. Chiquita’s executives got some high level meetings at DOJ and–purportedly–DOJ told them they should not worry about paying protection money to terrorists, so long as they cooperated with DOJ’s investigations into the Colombia death squads. Then, no charges were filed against any of the well-connected Republican executives. But now we find out that a warrant supposedly served on Chiquita back in 2004 may never have been served (h/t Rayne).

What happened to the search warrant that the government supposedly served on Chiquita Brands International three years ago? The lead prosecutor on the case — in which Chiquita was accused of funding terrorism — has always thought that the warrant was executed. But lawyers for the company and a U.S. Department of Justice official recently said that it wasn’t. Their revelation has led to new questions: Was the warrant blocked, and if so, why?

[snip]

… one highly placed Justice official confirms that no warrant was executed. This official, who spoke on the condition he not be named, wouldn’t elaborate.

In a postpublication interview, [the original prosecutor Roscoe] Howard says he still believes the warrant was obtained and executed, and that the Justice Department is "stonewalling" for reasons he doesn’t understand. He adds, "I’ve got no doubt it was executed, but someone may be covering it up for some reason." Howard and Seikaly both say that their former colleagues in Justice won’t discuss the warrant with them now, which puzzles them.

[snip]

Ken Wainstein also played a key role in the Chiquita probe. At the time of the Justice deliberations over the warrant, he was chief of staff to the director of the Federal Bureau of Investigation, which would have been responsible for serving the warrant. Boyd, Wainstein’s current spokesman at the national security division, declined to comment on his boss’s involvement with the Chiquita warrant.

One source close to the Chiquita investigation, who asked to remain anonymous, says he suspects that the warrant was cancelled either by someone at the Justice Department’s main headquarters or at the FBI. If the warrant were sabotaged, it raises questions of favoritism, and even obstruction of justice.

Law.com is too polite to say it, but there’s plenty of reasons to believe the warrant–which was targeted to gather information on Chiquita executives–was never served. Here’s my thinking, expanded from this post, this post, this post, and this post. And don’t worry–I’ll come back and do a timeline, once I’ve thought through some things.

The Official Story

The official story is that Chiquita has been paying protection money to terrorists going back many years. They paid the left-wing FARC and ELN from 1989 to 1997. In 1997, the leftist terrorist groups were declared terrorists. So Chiquita flipped sides, and started to pay the right-wing AUC. The board had discussions about the fact that they were paying protection money to right wing death squads in 2000, but that didn’t seem to be a problem for them. The AUC was declared a terrorist group in 2001, but Chiquita kept on paying them and kept on doing business in Colombia. In 2003, Chiquita’s outside counsel told them, in no uncertain terms to stop: "Must stop payments. Bottom Line: CANNOT MAKE THE PAYMENT." Later that year, Roderick Hills (who’s a big time Republican lawyer with a remarkable affinity for companies with fraud problems) and another Chiquita executive told the board they were funding terrorists in Colombia. Rather than stopping the payments right away, they decided to go to DOJ and tell them they were funding terrorists. Roderick Hills basically counseled, "Just let them sue us, come after us."

So on April 24, 2003, Roderick Hills, another Chiquita executive, and their outside counsel went to DOJ to have a meeting with "top Justice Department officials" to admit they were paying terrorists. There’s a great deal of dispute about this meeting, so for the moment, let me say that DOJ claims they told Chiquita to stop, while Hills and the other Chiquita executive claim DOJ told Chiquita it faced "no liability for past conduct" and DOJ had "no conclusion on continuing the payments." Hills went back to the Chiquita board, told them this "no conclusion" claptrap, and Chiquita went on making their payments to their terrorist protectors in Colombia. At the end of 2003–even after having told DOJ they were making payments to terrorists–Chiquita created a second set of books to pretend they were paying a legitimate protection service, not a terrorist group. Chiquita’s last payment to the AUC, according to their criminal proffer, at least, was on February 4, 2004, two and a half years after AUC was declared a terrorist organization.

By this point, DOJ is investigating. The investigation was run by Roscoe Howard, then USA for DC, the guy who believes his warrant was served. But Main DOJ was closely involved. In particular, David Nahmias, then the Deputy Assistant Attorney General in charge of Counter-Terrorism and now the USA in Atlanta, got involved; he and Howard had some disagreements about the case, including on the warrant in question. Nahmias’ boss, Assistant Attorney General of the Criminal Division Michael Chertoff, was even involved until he left in June 2003 to become a Judge and shortly thereafter Secretary of Homeland Security. In May 2004–just after the two critical events–Howard resigned and went into private practice. Ken Wainstein, then Robert Mueller’s Chief of Staff at FBI, moved to take over as interim and then Senate-approved USA for DC; he is now the Assistant Attorney General for National Security. In short, it’s all a mess, but the guy trying to throw the book at Chiquita moved into private practice right when rotton bananas started hitting the fan, whereas three of the guys working closely with Chiquita at DOJ have had some serious promotions since 2004.

Meanwhile, Chiquita brought in former Attorney General Dick Thornburgh to help them out. According to an LAT article now behind firewall, Ford’s Assistant Attorney General Dick Thornburgh and Ford’s White House Counsel Roderick Hills started working their DC network.

Chiquita’s "lawyers went all over D.C. to have meetings" with top officials at the Justice Department, the Treasury Department and elsewhere, often without the front-line prosecutors knowing about it, one of the senior Justice Department officials said. "They were trying to cause political pressure."

That pressure seems to have worked. Because Howard prepared to serve the warrant in question, but Nahmias tried to stop him. The warrant was dated March 24, 2004 and–as we see here–it’s not really clear whether it was served or whether it disappeared into a big Republican black hole. On April 26, 2004, Thornburgh wrote a letter to Nahmias, Christopher Wray (AAG for Criminal Division at DOJ, who replaced Chertoff) and Attorney General John Ashcroft. Thornburgh asked for a meeting before DOJ charged anyone–though it’s unclear whether that meeting ever happened. And then, almost three years later in March of this year, Chiquita settled for a big fine. But none of its executives were ever charged.

So the official story is, Chiquita pays terrorists, admit that they did so, and after some high level Republican intervention, they get off pretty easy. But there are two unofficial parts of the story.

If It’s a Republican Scandal Involving Latin America, There Have to Be Drugs

Yup, drugs. According to this story (which you should read if you need a refresher course on either Chiquita’s history with the CIA and neocolonialism in Latin America or a primer on the AUC, the group Chiquita had been paying), Chiquita was doing far more than paying terrorists for protection.

… from the moment of her birth in the Norwegian yards in 1992 until 2003, the ship was a Chiquita freighter, designed to keep the fruit in perfect condition on its long voyage over the oceans. The captain said, “Sometimes they put the drugs on the banana boats.” I was stunned. I had been under the impression that drug traffickers only used small fast boats to move cocaine from place to place, but this isn’t true. The freighters are difficult to search and blend into normal shipping traffic—because that is exactly what they are. They can also haul a ton at a time if the kilo bricks are well hidden.

[snip]

I asked him about the drugs-for-weapons exchange and the Chiquita freighters. “Look, for every kilo of drugs they put in, they had to pay 500,000 pesos. If you’re a drug trafficker, and I’m in control, you’d have to pay me. You have 20 kilos of coca, or you have some other cargo, and I own that region—you understand me? You pay me 500,000 pesos for me to ship those drugs as if they were mine, in the boats. You understand? Chiquita’s boats. That’s what the Bananero Block had going on here.” Lorenzo watched the AUC load drugs onto Chiquita boats; he knew about it because he was there when it happened. “Look, there were drugs, and there were times that they sent drugs for weapons. They sent the kilos of drugs, and from out there, those duros said we are going to send this many kilos of drugs and I need this many rifles,” Lorenzo said.

What Lorenzo described was a successful scheme that allowed the AUC to act as a contraband-freight consolidator. The AUC could ship their own cocaine on the company freighters or they could ship product belonging to someone else for a tax of roughly $250 per kilo, which works out to a quarter of the Colombian value of the brick. And the smuggling scheme was a direct side effect of gaining access to the port. Lorenzo insisted more than once that Chiquita employees knew about the cocaine: everyone in the chain was paid a percentage to keep quiet, including the freighter captains. [my emphasis]

According to this story, until Chiquita sold its entire Colombian banana fleet in 2003 (when they had told DOJ they were funding terrorists, but before they stopped), they were shipping AUC cocaine back to the United States along with their bananas. They were doing more than pay off AUC–they were allowing AUC to make huge profits selling access to Chiquita’s boats to ship cocaine into the US.

Can you see why powerful Republicans might not want that warrant to be served?

Did Michael Chertoff Tell Chiquita He’d Get Back to Them on Funding Terrorists?

But then there’s the dispute about the first high level meeting Chiquita arranged with DOJ. As I said, DOJ says they told Chiquita to stop funding terrorists. Chiquita says DOJ sent a mixed message.

But surrogates of Roderick Hill said something else entirely in this article trying to pressure DOJ not to bring charges against him.

The crux of the inquiry involves an April 24, 2003, meeting between Mr. Hills, in his capacity as a director of Chiquita, and Michael Chertoff, who was then in charge of the criminal division of the Department of Justice and is now the secretary of the Department of Homeland Security.

[snip]

In the version offered by Chiquita officials, Mr. Chertoff was more equivocal at the meeting, a view contained in letters from defense lawyers to the Justice Department, according to the sources familiar with the court filings. Mr. Chertoff said he understood the sensitivity of the situation and would get back to the Chiquita officials, which he apparently did not do before going on to become a federal judge.

Mr. Chertoff, who has declined to comment, will almost certainly be called to testify if the matter goes to trial.

Defense lawyers said the company engaged in regular discussions with Justice Department officials about using the payments as an opportunity to provide intelligence to the government about the A.U.C. Those discussions, the lawyers contend, were crucial in convincing the company that the American government was prepared to tolerate the continuation of the payments. [my emphasis]

In other words, Chiquita has a meeting with the current head of DHS. He equivocates on whether it’s a problem that Chiquita was paying right wing death squads (though I have no idea whether he equivocated–or even knew–about using Chiquita ships to smuggle the AUC’s drugs). And then Chiquita keeps paying terrorists, under the guise of "providing intelligence" about the AUC, for almost a year.

And somehow, no one knows whether that warrant ever got served on Chiquita.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Interesting stuff. Makes some sense too. Chiquita money goes to Repubs and they are happy to make this go away after all it is in a foreign country. And the US press is not very good with foreign news.

OT, but if you get a chance, check out the latests posts over at Balkinization where both Marty Lederman and Jack Balkin let the air out of our balloons regarding Senator Whitehouse’s “find” in those OLC opinions.

Joseph HaginDeputy chief of staff to the PresidentA former vice president at Chiquita Brands International, Hagin is in charge of the daily operations of the White House. He was deputy campaign manager in George W. Bush’s 2000 presidential campaign.
• When the President Needs Someone He Can Trust, He Turns to Big Joe, Cincinnati Enquirer, Jan. 20, 2003

Well, the intrigue of this issue is indeed compelling on numerous levels, but the mechanics of answering the bottom line question are blindingly simple. There either was, or there was not, a warrant application, including the requisite bill of particulars, lodged with the court and/or grand jury clerk; and that application was either granted, denied or withdrawn. The court and/or grand jury clerk/custodian can check it’s file and recollection and give us the answer. See, wasn’t that simple? The DOJ has computers; were there documents created and properly time sequenced and encoded for the warrant application or not. There are either 302s from agents receiving and serving the warrant or there are not. The whole “gosh, golly, we did but we didn’t blah blah blah” by the DOJ is complete fucking nonsense.

Folks, on Marty’s and Jack’s take on Whitehouse, I disagree with Jack (I think he misreads what Whitehouse was saying), agree with Marty that the really troubling thing is the EO. But you’ll have to wait until Monday to see what I strongly suspect were the real implications of this policy.

Though I am a bit troubled by the statement about Article II–and would like to know more about the context. Whether it comes from Clinton (Bill or Hill) or Bush (Poppy or Junior), I’m still uncomfortable with that. But partly that’s a testament to how dangers OLC can be in the wrong hands.

EW-This is again an extraordinary post. Again it looks as if the “moral” rethugs are up to their eyebrows in bribery and drugs. What surprises me is why this has taken so long to get “out there,” and why the official “reporter” class didn’t find and publish it first. And you didn’ even go into the personal tragedy of all this north and south of the border. We need a new Pulitzer category for web reporting.

The ships logs should contain their ports of call. They would be direct from Columbia to the US with the bananas. If the log were to show any stops on the way back other than the original port they sail from that might yield some clues. It is possible they could meet other ships at sea.

EW- sorry I missed the obvious. In economic and shipping terms, if the boats are bringing bananas to the US it makes the most sense to bring the guns on board where the bananas are dropped off (Florida? New Orleans?) and or nearby so the boats don’t go down empty. Rail service leads directly from Ct (where many of the rifles are manufactured) to both ports.

Matt – I am assuming that selling US rifles in South America would be legal (presumably they are resold once they are there). The other big (heavy) item that end up in South American with some frequency are expensive cars.

Matt. Yes absolutely. And between Isr*el and US gun manufacturers over 4 million people have died since 2000 in SE Congo – the guns being a key item exchanged for diamonds and the tin oxide used to make the hard boards of cmputers. I would be curious about where the rifles in the Sudan devastation are coming from – these two sources or China. And, closer to home, I haven’t heard MSM yet ask how the troubled kid who killed all those people in the mall recently got his rapid fire rifle.

“While I welcome this preliminary inquiry(DoJ), this Administration cannot be trusted to police itself. For that reason, the House Intelligence Committee will begin its own inquiry this week. We will follow the facts wherever they may lead, and we will use every tool at our disposal to conduct a fair and complete review on behalf of the House of Representatives and the American people.

makes sense… i’m too lazy to looks for a marcy link… but remember jane mayer’s new yorker piece about the beginings of our extraordinary rendition program (the one where people get kidnapped and then flown to egypt to be tortured and/or executed)?

In 1995, Scheuer said, American agents proposed the rendition program to Egypt, making clear that it had the resources to track, capture, and transport terrorist suspects globally—including access to a small fleet of aircraft. Egypt embraced the idea. “What was clever was that some of the senior people in Al Qaeda were Egyptian,” Scheuer said. “It served American purposes to get these people arrested, and Egyptian purposes to get these people back, where they could be interrogated.” Technically, U.S. law requires the C.I.A. to seek “assurances” from foreign governments that rendered suspects won’t be tortured. Scheuer told me that this was done, but he was “not sure” if any documents confirming the arrangement were signed.

A series of spectacular covert operations followed from this secret pact. On September 13, 1995, U.S. agents helped kidnap Talaat Fouad Qassem, one of Egypt’s most wanted terrorists, in Croatia. Qassem had fled to Europe after being linked by Egypt to the assassination of Sadat; he had been sentenced to death in absentia. Croatian police seized Qassem in Zagreb and handed him over to U.S. agents, who interrogated him aboard a ship cruising the Adriatic Sea and then took him back to Egypt. Once there, Qassem disappeared. There is no record that he was put on trial. Hossam el-Hamalawy, an Egyptian journalist who covers human-rights issues, said, “We believe he was executed.”

A more elaborate operation was staged in Tirana, Albania, in the summer of 1998. According to the Wall Street Journal, the C.I.A. provided the Albanian intelligence service with equipment to wiretap the phones of suspected Muslim militants. Tapes of the conversations were translated into English, and U.S. agents discovered that they contained lengthy discussions with Zawahiri, bin Laden’s deputy. The U.S. pressured Egypt for assistance; in June, Egypt issued an arrest warrant for Shawki Salama Attiya, one of the militants. Over the next few months, according to the Journal, Albanian security forces, working with U.S. agents, killed one suspect and captured Attiya and four others. These men were bound, blindfolded, and taken to an abandoned airbase, then flown by jet to Cairo for interrogation. Attiya later alleged that he suffered electrical shocks to his genitals, was hung from his limbs, and was kept in a cell in filthy water up to his knees. Two other suspects, who had been sentenced to death in absentia, were hanged.

On August 5, 1998, an Arab-language newspaper in London published a letter from the International Islamic Front for Jihad, in which it threatened retaliation against the U.S. for the Albanian operation—in a “language they will understand.” Two days later, the U.S. Embassies in Kenya and Tanzania were blown up, killing two hundred and twenty-four people.

i used to wonder why there were no investigations into the black sites, extraordinary rendition an torture once the dems won control of congress. then i realized, they probably weren’t just covering up for bush – they were covering up for themselves too.

probably it was reading mary’s comments that made me face that possibility.

wild-assed guessing without even having read the article… (just the dkos diary):

this article is pushback and a warning from the administration to the dems in congress – follow through on the investigations you are calling for (destroyed torture tapes, etc) and we will take you down with us.

if i’m right, the anonymous sources will be republicans or their supporters. will be interesting to read the whole thing – when does it come out?

It comes out anytime tonight. Kos article had the link, and I checked a few minutes ago, and it wasn’t up yet.

I can imagine what some of the Senators are going to think about all of this…Quite frankly, I hope she does go down with them. She’s no friend or representative of the Democratic party, that’s for sure. It is so unconscionable. How could she live with herself…

Maybe a miracle will happen, and it will all be a lie, and maybe she has proof that none of it ever happened. She has a couple of statements and copies of letters on the Gavel about the destruction of the tapes, but nothing indicating a disdain for torture.

i agree – i hope everyone- D and R – who is complicit with torture is brought down. but i fear that the threat of mutual assured destruction (if i’m right) will deter the Ds (as it seems to have done so far) from a thorough investigation.

Alas, in taking down all involved -D & R- all it serves to do is to reimpower the oligarchy (wealthy rethugs), the clandestine global shapers (CIA) and others working outside the normal channels of government (whatever that may mean at this point in time).

An awful lot of CIA crap has been vomited up these last few says (new NIE Iran report, revelations that CIA destroyed torture tapes, and the new report that Pelosi saw black sites/approved of “enhanced” torture). A couple of days ago in DC’s Dupont Circle area, I was pretty surprised to see two interviews underway at local well known public coffee places -one between a well known senior (former) CIA figure I recognized from the news and a journalist (notebook in hand) and the other involving a senior state dept official and another interviewer. Maybe this is normal for this area of DC. But it seems like what we are seing is a major push and counter push by competing groups in CIA and state. If I had to guess, I would say that a key battle is underway over the direction of the country in the ME. Pelosi – a coward in this, as in so many other things-is largely a pawn in the larger scheme of things. I bet she’s being slapped around on this however in part as a casualty of this battle.

The order of Sheldon’s presentation is important, if you want to see what he’s pointing at.

Going back to the exchange between Whitehouse and Mukasey during the confirmation hearings – one of the few bright spots on Mukasey’s ‘Mr. Hyde’ second day in front of the SJC – Whitehouse and Mukasey agreed that the President should amend, or cancel and re-issue, any EO he chooses not to comply with.

So, Whitehouse already had Bush on the horns of a dilemma with EO 12333 – He knew Bush wasn’t complying with it, and yet the EO hadn’t been amended, and looked for all the World like an ‘in force’ Executive Order.

So, Whitehouse then asked himself, ‘If I were Bush, how would I be able to explain my actions vis-a-vis 12333?’

Fast forward, and Sheldon is in ‘the vault’ reading the OLC Opinions underpinning the NSA Warrantless Wiretapping Program, and what does he see?

1. Everyone Else, must Obey EO 12333 (Do as I say), while I and my designates ignore it (not as I do), and I hide my actions from Congress.
2. EO 12333 is the Law, because I said so (What I say Goes!)
3. The Law, EO 12333, applies to everyone, except myself and my designates – the AG can give me his Opinion, but the decision is mine (No back-talk allowed!)

So, Whitehouse’s speech delivers the ‘answer’ to his wonderment – How could Bush explain ignoring EO 12333? And the answer, inescapable but hard to accept, is by –

– setting himself up Above the Law,
– hiding it from Congress, and
– not letting his ‘Agents’ vet the Authorizing Legal Opinion in a Court

So, Whitehouse is all-but-saying: You can see where this can go, can’t you? If Bush is willing to ‘hide’ his ‘non-compliance’ with an ‘in force’ Executive Order, why wouldn’t he also hide ‘non-compliance’ with an ‘in force’ Judicial Order or an ‘in force’ Legislative Subpoena or ‘in force’ Adminstrative Law, etc?

The problem with Bush’s Rationale is that it gives him ‘immunity’ from his own Laws, which makes US – de facto – no longer a Nation based on the Rule of Law, but rather a People subjected to the whims of a Tyrant and his Henchpeople.